Sun, 25 Feb 2018

Writings on Legal History

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The Encyclopedia of Political Thought, First Edition. Edited by Michael Gibbons. © 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.

Justice is the virtue of acting rightly and properly with regard to others (political justice) and with regard to oneself (moral justice). Justice is also understood as the good, the appropriate, or what is right in a given situation. Rhadamanthus, the Greek judge of the dead, meted out justice according to the maxim: “Suffer what you have done.” The Roman jurist Ulpian writes: “Justice is the constant and perpetual will to render to each man his due.” The Golden Rule holds: Do unto others as you would have them do unto you. What these examples of folk wisdom share is the sense that justice is about proportionality and also singularity. The claim that justice is “to give to each his/ her own” expresses the aspiration for justice as equity. Because no two persons or circum- stances are the same, laws that treat everyone equally are, as Plato argued in the Statesman, stubborn and stupid. It is better, Plato concludes, to be governed by a wise philosopher- king than by rigid laws. Plato’s greatest student, Aristotle, agrees that there will always arise new cases for which the application of the law will be unjust. But his solution is not to discard law in favor of a philosopher-king, but to allow wise judges to straighten the defects in law. It is just, Aristotle writes in the Nichomachean Ethics (NE), to rectify the defect in law by deciding as the lawgiver would himself decide if he were present. This rectification of law, or equity, is one fundamental aspiration of justice: to do what is fitting in each particular instance.

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The Angry Jew: Hannah Arendt on Revenge and Reconciliation

Roger Berkowitz, Philosophical Topics, Fall 2011.

Sholom Schwartzbard killed Simon Petlura in an act of revenge. He admitted his crimeand a French jury acquitted him in 1927. For Hannah Arendt, Schwartzbard’s actions show that revenge can, in certain circumstances, be in the service of justice. This paper explores Hannah Arendt’s distinction between reconciliation and revenge and argues that Hannah Arendt embraces revenge as one way in which politics and justice can happen in the world, but only under certain conditions. First, Arendt only endorses revenge when the crime calling forth vengeance is extraordinary, one that bursts the bounds of traditional legality. Second, the avenger must give himself up for judgment to the legal system, asking a jury to judge whether his extraordinary act was just even though it was illegal. These are strict conditions and will only rarely be met. When they are, revenge can be a profoundly political act in the service of justice, one that can restore a broken political order.

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From Justice to Justification: An Alternative Genealogy of Positive Law

University of California, Irvine, Law Review v. 1.3 (2011).

Apologies. This article is not currently available online.

The Judge as Tragic Hero: An Arendtian Critique of Judging, Articles/Research Notes v.4 (2008)

- Revised version, originally published in The Graduate Review (cont. as Critical Sense) v. 1, #1 (1994)

In his book Justice Accused,1 Robert Cover explores how and why ante-bellum Federal judges who were opposed to slavery consistently upheld the constitutionality of the Fugitive Slave Act of 1850.2 These judges claimed that despite their strong personal convictions that slavery was immoral and wrong, they were constrained by the U.S. Constitution to declare the Act constitutional.3 As Cover convincingly demonstrates, however, the arguments for the constitutionality of the Act of 1850 were not widely perceived to be ironclad, even in 1850.4 Nevertheless, the judges, at least some of whom were sincere in their opposition to slavery, upheld the Act.

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Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann's Dignity Jurisprudence

Acta Juridica (2008)

- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

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Democratic Legitimacy and the Scientific Foundation of Modern Law

Theoretical Inquiries in Law, v. 8.1 (2006)

This Article explores the unacknowledged impact of the scientifc provenance of modern law. Justice, I argue, is threatened by social scientifc thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I contest the conventional wisdom that positive law originates not with science but with democracy. In addition, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

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Disorderly Differences: Recognition, Accommodation, and American Law

(With Austin Sarat). Law and Religion, ed. Gad Barzilai (Ashgate, 2006)

- Originally published in Yale J. of Law and Humanities (June 1994).

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The Encyclopedia of Truth

Law, Culture, and the Humanities, v. 2, #1 (2006). Review of Rainer Maria Kiesow's The Alphabet of Law

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Friedrich Nietzsche, the Code of Manu, and the Art of Legislation

New Nietzsche Studies v. 6 (2006)

- Expanded version, originally published in Cardozo Law Rev. v. 24 (2003).

Political and legal theorists ask the question: What should law be? In so doing, they implicitly or explicitly overlook what law is. This preference for the normative as opposed to the ontological approach to law is rooted in the assumption that law serves social and political ends.

Indeed, in deference to its normative interests, legal scholarship has embraced a diversity of social sciences to assist in the discovery of the best laws. For example, the marriage of law and sociology seeks social norms of fairness according to which particular laws should be understood and interpreted. Similarly, the science of moral philosophy strives to isolate intersubjective moral norms that will guide legislation and legal interpretation. Positivist legal science strives to determine rules of recognition for the identification of valid laws that guaranty the certainty and security promised by the rule of law. Most recently, the sciences of both rational and behavioral economics have emerged as powerful tools, facilitating the discovery of those laws that maximize efficiency.

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The Accusers: Law, Justice, and the Image of Prosecutors in Hollywood

Griffith Faculty Law Review v. 13, #2 (2005)

This essay begins with the observation that the American culture industry is nearly incapable of presenting state prosecutors in a positive light. Through readings of three apparent exceptions to this rule, the essay argues that prosecutors can only be heroically and positively conceived on screen when they abandon their traditional association with law and seek to do justice beyond the laws. To the extent that prosecutors can be seen as a proxy for the image of the ideal of legal justice itself, this essay argues that the imagining of prosecutorial justice in Hollywood shows that law has lost its once-assumed connection with justice.

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The Gift of Science: Leibniz and the Modern Legal Tradition

Harvard University Press (2005); Law Press (Forthcoming, 2010). Chinese language edition; Fordham University Press (2010). Paperback.

The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis.

Read more of the introduction as well as reviews here.

Harsh Justice

Law, Culture, and the Humanities, v. 1, #1 (2005). Review of James Whitman's Harsh Justice

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The Spring of Law: Some Thoughts Inspired by Nietzsche's Doctrine of the Sittlichkeit der Sitte

Rechtsgeschichte v. 6 (2005)

The man from the country stands before the door of the law. The man confronts the law as an open door through which he cannot pass. Law, as Rainer Maria Kiesow has written, is an open book that begs to be read even as it simultaneously announces its impossibility. The man of law is confronted with the paradoxical injunction to read what can't be read. That is the law.

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Error-Centricity, Habeas Corpus, and the Rule of Law as the Law of Rules

Louisiana Law Review v. 64 (2004)

On August 10th, 1927, as hundreds of thousands of protesters marched in New York, Paris, Berlin and in cities from South America to the Soviet Union, as workers around the world called general strikes and took to the streets, and as, in the words of one commentator, “the world waited,”1 a team of attorneys representing Nicola Sacco and Bartolomeo Vanzetti sought out United States Supreme Court Justice Oliver Wendell Holmes, Jr. Trailed by journalists to Holmes’ Beverly, Massachusetts summer residence, the attorneys pleaded with the Justice to grant Sacco and Vanzetti a writ of habeas corpus. If Holmes were to grant the writ, the murder verdict against the two Italian-American anarchists would be nullified, and they would be set free pending a new trial. As Sacco and Vanzetti were scheduled to be executed that evening, time was short and tensions were high.

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History and the Noble Art of Lying

Rechtsgeschichte v. 4 (2004)

Wozu Rechtsgeschichte? To ask is to accuse. Is there any doubt about the answer? Why is a rose a rose? Because it is (Martin Heidegger, Der Satz vom Grund).

In 1886, Friedrich Nietzsche reissued his first, youthful, brash and yet fragwürdiges book. Die Geburt der Tragödie, he informed us in the newly written critical preface, was in many ways a book infected with the passions of youth. Nevertheless, Nietzsche deemed it worthy of republication because it posed a valuable question, one of the »first rank«. Not only of abstract worth, the question was »a deep personal question«. The book asked: Wozu – griechische Kunst? … In approximate English translation, »What for – Greek art?…« (Geburt der Tragödie [GdT], Kritische Studienausgabe [KSA] I, 12).

Nearly 120 years later, the editors of Rechtsgeschichte have asked us to think about the question, Wozu – Rechtsgeschichte? What for – legal history? With Nietzsche reverberating in the background, the question imposes itself: is this a question of merely abstract worth? Is it a personal query? Is it an opportunity for selfjustification, or does it scratch beneath the surface of a scabrous wound?

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Law, Justice, and the Transformation of the Prosecutorial Ethic

Rechtssysteme im Vergleich: Die Staatsanwaltschaft, ed. Dieter Simon, et al. (2004)

One of the great puzzles of the popular genre of legal films is that despite the insatiable hunger for cop action films in which beleaguered police overcome great odds to put the bad guys in their proper place, their partners in law enforcement, the public prosecutors, are virtually invisible in the history of American film. Police dramas have no problem romanticizing the role of law enforcement; for some reason, however, the popularly conceived heroism that attaches to cops through the imposition of order on the chaos of centripetal passions does not carry over to prosecutors. On the contrary, prosecutors have been and remain one of Hollywood's most regularly scorned professions. Indeed, it can be said with a surprising degree of confidence that Hollywood has not produced one single film in which prosecutors are either heroically or sympathetically portrayed in their everyday job of prosecuting and convicting criminals.

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'Not Guilty' - Millennial Speculations on Legal Defense from Queen Fredegond to Bill Clinton

Advocatus Defensorum, ed. Dieter Simon, et al. (2000)

Accused of adultery, the 6th century Merovingian Queen Fredegond was challenged by her dead husband's brother to prove that her son, the future Clotaire II, was indeed of royal progeny. The Queen, in conformity with the law, defended herself by means of a compurgatory oath. The oath was in effect a formal and material denial of the charge and an assertion of her innocence. The success of the compurgation oath rested solely on the ability of the defendant oath-taker to provide the requisite number of oath helpers who would swear, not to the truth or falsity of the accusation, but to the honor and truthfulness of the oath taker. Fortunately, Queen Fredegond was so generous a lover that she had little difficulty rounding up three Bishops and 300 of the most honorable men in her realm to serve as her co-jurators. With her oath, the Queen alleviated the King's (assuredly justified) suspician, defended herself, preserved her son's claim to a noble birth, and repulsed the accusation of adultery. No evidence beyond her denail was introduced in her defense.

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Some Prefatory Remarks on Positive Law (Gesetz)

Rechtshistorisches Journal, v. 19 (2000). Review of A. Sebok's Legal Positivism in American Jurisprudence.

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Crossing the Warrior Path

Rechtshistorisches Journal, Volume 16, 1998. Review essay on Thomas Pynchon's Mason & Dixon

“‘It goes back,’” Thomas Pynchon invites us to imagine, “‘ to the second Day of Creation, when ‘G-d made the Firmament, and divided the Waters which were under the Firmament, from the waters which were above the Frimament,’ -- thus the first boundary Line. All else after that, in all History, is but Sub-Division.’”

In the beginning was sub-division, which is to say: In the beginning was the lawsuit. And how different is that from the Word? Are not theology and jurisprudence sister sciences, dedicated to the proper -- or must we today say authoritative? -- interpretation of manifested truths -- or must we say desires? If theology endeavors to rightly discipline the expression of desire, the functional essence of the lawsuit is instead the authoritative resolution of conflicting desires. The traditional bridge between theology and jurisprudence consists, of course, in the latter’s purported subsumption to the former.

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Truth and Error: Legal Error and the Uniquely American Doctrine of Habeas Corpus

Error Iudicis. Juristische Wahrheit und justizieller Irrtum, ed. A. Gouron, et al. (1998)

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The Judge as Captain

Europaische und Amerikanische Richterbilder, ed. A. Gouron, et al. (1996)

To pursue the question of judicial duty, it is first necessary to gain clarity about the concept of obligation. An obligation, if it is to be morally valid, must be absolute and unqualified. Oliver Wendell Holmes, Jr., one of the United States' greatest Supreme Court Justices, was one of the last legal thinkers to understand the necessity that duty be absolute. As Holmes writes, "[t]he test of a legal duty is the absolute nature of the command." If a judge is to have a duty, it must be absolute. But towards what is that absolute duty?

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Highlighting the Unknowable

Rechtshistorisches Journal, Volume 14, 1995. Review of Questions of Evidence, ed. J. Chandler, A. Davidson and H. Harootunian

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